"Democracy Contested"

[We have the following announcement.  DRE]

Democracy Contested? A virtual event of Cornell University to be held Thursday, October 29, 2020 at 7:00pm to 8:00pm.

As the U.S. Presidential Election nears, the nation’s courts, political systems and media are preparing for the possibility of a contested outcome. A panel of Cornell faculty experts will examine the history of contested elections in the United States and worldwide, while also discussing how disinformation and fake news reports might influence the election result and voter participation.

Moderator:
David Bateman, Associate Professor, Government

Panelists:
Kenneth Roberts, Richard J. Schwartz Professor, Government
Alexandra Cirone, Assistant Professor, Government
Julilly Kohler-Hausmann, Associate Professor, History

Keller on Common-Law Qualified and Absolute Immunity

 Scott A. Keller, Baker Botts LLP, has posted Qualified and Absolute Immunity at Common Law, which is forthcoming in the Stanford Law Review:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed — short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under 19th century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This article therefore provides the first comprehensive review of the 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, 19th century decisions.

These historical sources overwhelmingly refute the modern prevailing view among commentators about one critical aspect of qualified immunity: The 19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties — like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the 19th century common law: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden of proof.

These three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that will sufficiently protect the separation of powers without needing the “clearly established law” test — which pervasively denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial. In sum, restoring the 19th century common law on state officer immunities could address many modern problems with qualified immunity.

--Dan Ernst

Smith v. Allwright at University of Kentucky

Lonnie Smith Votes in 1944 Primary

 [We have the following announcement.  DRE.]

The University of Kentucky Special Collections Research Center (SCRC) pleased to announce a new exhibit titled “Black Voters, White Primaries." Using case files from the papers of Supreme Court Justice Stanley Forman Reed, as well as other archival materials from the collections, the exhibit explores how Smith v. Allwright (1944) helped end the “white primary," a voter suppression tool that served as the first line of attack—and often the only one needed—to prevent Black Americans from voting in the Jim Crow South. BONUS: UK Rosenberg College of Law Professor Josh Douglas weighs in on voter suppression this election season.

The exhibit was created as part of UK’s John G. Heyburn II Initiative for Excellence in the Federal Judiciary, a non-partisan endeavor devoted to the preservation and study of federal judicial history, with a particular focus on Kentuckians in the federal courts. 

Credit for image:  “Courtesy University of Kentucky Special Collections Research Center”

Morley on Partisan Gerrymandering and State Constitutions

Michael Morley, Florida State University College of Law, has posted Partisan Gerrymandering and State Constitutions:

Since the U.S. Supreme Court held in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable under the U.S. Constitution, reformers have shifted their focus to pursuing such claims under state constitutions. In some cases, longstanding state constitutional provisions have been re-interpreted to prohibit partisan gerrymandering. In others, state constitutions have been expressly amended to either forbid partisan gerrymandering or transfer authority over drawing congressional and legislative district lines from the state legislature to independent redistricting commissions.

The U.S. Constitution does not confer authority to regulate federal elections on states as entities, however, but rather specifically on the “Legislature” of each state. The “independent state legislature doctrine” teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly and specifically on a state’s legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on the doctrine without recognizing its deep historical roots or normative justifications.

The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors throughout the Nineteenth Century, and was consistently applied during that period across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution’s election-related provisions. Properly understood, the independent state legislature doctrine is a powerful, largely overlooked obstacle to the use of state constitutions to combat partisan gerrymandering.

–Dan Ernst

Policy History 2021

A draft of the program the eleventh biennial Conference on Policy History in Tempe, Arizona from Wednesday, June 2 to Saturday, June 5, 2021, is here, but the organizers are still accepting “additional panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.”

Trump and Hitler, an apt comparison?

I'm going to open this post with a quote from Bernie Sanders:

"A nation cannot be called impotent as long as it is able to produce the minds that are necessary to solve the problems crying out for solution. We can measure the greatness of a people by the minds it produces. That, too, is a value, but only when it is recognized as a value. If a nation has the ability to produce great minds a thousand times over, but has no appreciation for the value of these minds and excludes them from its political life, these great minds are of no use."

A powerful quote from a great mind, except actually it's a HITLER QUOTE!  Only slightly modified to make you think Bernie might have said it!  *EVIL LAUGHTER*  Bernie supporters really love HITLER!  I've used the power to pluck a quote entirely out of its context, tweak it, and post it to fool you mere cretins who support Senator Sanders!

This is the sort of story I see now repeatedly which, in its many forms, attempts to link Donald Trump, Trump's current voter appeal, or Trump's statements into some sort of Hitler clone.  For example:

So although I'm not a "history teacher" I would like to point out that, first, slapping Trump's head on a classic Hitler pose does not a compelling image make.  Furthermore I checked - Hitler is not anti-immigrant.  Really, he doesn't speak on it often, because immigration was not a major issue for Germany in the 1930s.  Hitler did stand in opposition to Communism, violently opposed to it, but that is a far more complex battle than the above text implies.  One of the groups the Nazi party opposed in Germany was the German Communist Party, which also was the party that most often matched the Nazis in the late 1930s in seats in the German parliament.  So this would be a comparable moment if you actually had in the United States some sort of "Muslim Terrorism Party" that ran against the Republicans and controlled about half the United States House of Representatives regularly.

Which of course also fails as a comparison because the German parliament was nothing like the United States Congress - being based on a Parliamentary model of organization it was closer to the British Parliament.  (Variable elections based on the ability of the government to pass legislation versus fixed terms of service.)

This is Hitler - when Hitler was rising to power in the early 1930s he did it on the back of a massive economic implosion (no the recent Great Recession is not the same), and he did it leading a people still psychologically recovering from a humiliating defeat in a war and harnessing a myth that this people had been "stabbed in the back" by their government.  Also, as you can see from this genuine speech of Hitler's from 1927 Hitler is obsessed with seeing the world through a racial lens.  (Trump panders to racists but I highly doubt you will find he sees the world through a racial lens in any way like what Hitler sees it.  Imagine if in ALL of Trump's speeches he argued that the Mexican people were a separate people, a people with inferior blood, based solely on their being Mexican.  A sneaky separate people that have oppressed Anglo people around the world for generations.  A people with a secret powerful connection to shadowy cabals.)  See, it doesn't work, that isn't Trump's appeal.

Because Trump isn't trying to appeal to the prejudices of early 1930s Germans and he wasn't educated on a diet of really crappy anti-Semitic pamphlets while stewing in flophouses trying to be an artist.  Hitler wasn't well educated (Trump is comparatively), Hitler came from lower middle class roots shifted to extreme poverty (Trump didn't and isn't), and Germany in the 1930s was dealing with a completely different set of ideological problems than the United States in the mid-2010s.

But I can hear you saying "But we need something truly EVIL to be able to compare to Trump, otherwise how can we make a fast easy set of memes to draw people to what a problem he is."  You don't need to dig into the collection of 1930s European Fascists, as people of the United States we've got our own contemporary example of Trump and his dangers right here.

I give you George Wallace, 1960s politician from right here in the United States.  I propose he is a perfect stand-in for Trump:

• He's unabashedly racist and you can substitute "Mexican" into many of his speeches where he says "Black" and you'll find good parallels
• He was in favor of segregation as a permanent feature of United States policy and believed strongly in state's rights
• Passionate orator who got crowds riled up and once called upon a crowd to go deal with a group of "pinkos" protesting his rally.  (Unlike Trump when the crowd got up to actually kick some ass he calmed them down.)
• His 1968 independent run for the Presidency of the United States has some really eerie similarities to Trump's currently stated politics
• He was also big on lowering taxes to court business to moving to his home state of Georgia (just replace Georgia with "United States" and "north" with "China" and you'll be fine.)

Now I know, who has ever heard of George Wallace as compared with Hitler?  You'll have to do more work building up the meme connection between the two, maybe get some late-night television hosts to do a snappy bit on the topic, but America we can make this stick.  Let's leave the Germany's their unhappiness and tap into our own rich vein of political assholes when talking about possible evils to compare to Trump.

If nothing else do it for the children, so they can stop being taught that Hitler was some sort of mega-evil monstrosity on par with an ogre or a troll.

Sources:  Wikipedia entry on George Wallace

19th Immigrants to America - the wrong message for a modern election

So the image above has been making the rounds on Facebook and appears to be showing a queue of immigrants, either in the late 19th or early 20th century, passing through Ellis Island or an equivalent port of entry into the United States.  The tagline at the bottom says that these immigrants "never burned our flag, respected American culture, cared about America."  With the top line it implicates that immigrants entering the United States in the 21st century, illegally, don't equal the same "higher quality" immigrants from a cultural protection perspective than these older immigrants.

First off, wow, the levels of cultural perspective shift held in that image, especially considering the widespread anti-immigrant feelings in the United States in the early 20th century specifically targeted at the above groups of immigrants is shocking.  But I am going to let that go for now, because the reality behind this text line is also wrong.

This image if from 16 September 1920, and is from the bombing of Wall Street, an act of revolutionary violence which was, most likely, carried about by Anarchists attempting to disrupt the United States economy and political system.  Although the United States government never formally determined who was responsible for the bombing attack, most evidence at the time and in later investigations points to a group of Italian immigrants, the Galleanists, a dedicated revolutionary group of Italian anarchists and followers of Luigi Galleani.  This group was mostly made up of Italian immigrants and most certainly did not respect United States culture or care about America as it was in the 1920s, it was dedicated to the overthrow of the United States government and American society.

The above bombing by the way killed a total of thirty-eight people and was done with a massive explosive device planted in a horse-drawn carriage.  It was detonated at noon to ensure maximum carnage.  (The physical damage to the Wall Street building was left in place and can be seen today.)

The center point of this particular movement is pictured above, Luigi Galleani, an anarchist from Italy who was expelled from multiple European nations, and the Middle East, before arriving in the United States.  He traveled the U.S. East Coast with a goal of motivating other anarchists, spreading revolutionary fervor among the working class, and supporting striking workers.  He was a believer in "propaganda of the deed" - carrying out revolutionary violence to inspire others to join in.  His followers are responsible for waves of assassination attempts (some successful), bombings, mass poisonings, and building a support network for anarchist activists through the early 20th century.  (His newsletter was also a source of an early form of "doxing" - printing home addresses of leading capitalists to inspire his readers to direct action.)

This is just the tip of the iceberg when it came to immigrant activism, throughout that period Socialists, Communists, and other political dissidents came to the United States to spread their ideas and make a strong attempt at revolution within the United States.  The Anarchists happen to stand out  in United States history because they were more colorful than other efforts and far more aggressive in the use of violent tactics.

But broadly there is no magical period of dutiful, loyal immigrants who came to the United States that can be contrasted with the immigrants of today.  Even in the late 19th through early 20th century immigrant boom in the United States you had efforts within that community to deliberately destroy the society and government of the United States, with any eye towards forging something new.

Sources:  Wikipedia articles on the Wall Street bombing of 1920 and Luigi Galleani